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General Conditions of Sale and Supply (“GCS”) DKSH GmbH (Version 1.0 as of March 9, 2017)

1. Applicability
Our deliveries and services are exclusively subject to these GCS. Terms and conditions that vary a) from these GCS – in particular, the Customer’s conditions of purchase – or b) from those specified by law shall only be considered binding if they have been confirmed by us in writing. Supply of goods, provision of services or acceptance of payments without reservation shall not constitute our recognition of conditions varying from these GCS.


2. Offers, contracts
2.1
All our offers shall be subject to written confirmation. A contract shall only be formed upon the issue of our written/printed order confirmation or the execution of an order by us.
2.2
Unless otherwise agreed, all quantitative data shall be approximate. Variances of up to 10% plus or minus in quantities actually supplied, which are attributable to filling, safety or other technical reasons, shall be deemed to constitute fulfilment of
the contract.
2.3
Unless otherwise agreed, the maximum and minimum limits for analytical data shall also be deemed to be approximate.


3. Purchase price, payment
3.1
Unless otherwise agreed, all prices quoted by us shall be ex works. Value-added tax shall be payable separately in the statutory amount in effect on the invoice date.
3.2
The prices shall not include additional charges, e.g. packing, transport, freight or customs duties.
3.3
At the Customer’s request and expense, we shall be entitled to cover adequate transport insurance for an insured amount of not less than the invoice value of the goods.
3.4
Unless otherwise agreed, the Customer shall effect payment to us within 14 days of delivery of the goods or provision of the services respectively.
3.5
Default interest will be charged by us on overduepayments at the rate of 8% p.a. over the base rate of the German Bundesbank (§ 247 BGB) in effect when interest is charged. We also reserve the right to file further claims for losses incurred through the payment default.
3.6
The Customer shall not be entitled to deduct counterclaims from the invoice amount. Set-off by the Customer shall only be permitted with claims being either undisputed or upheld by a final court ruling of a court with competent jurisdiction.


4. Place of performance
4.1
Unless otherwise agreed, the place of performance for the goods or services shall be Hamburg. All risks pass to the Customer at the time of transfer of the goods or provision of the services.
4.2
We shall despatch the goods at the Customer’s request and risk, subject to our specification of mode, route of despatch and carrier at our sole discretion. All risks pass to the Customer at the time of despatch of the goods.


5. Part deliveries
We shall be entitled to make part deliveries of goods and part provision of services, provided that these are in reasonable proportion to the complete order.


6. Delivery dates, delays
6.1
In the event of our failure to meet an agreed date for delivery of goods or provision of services or for fulfilment of any other contractual obligation, the Customer shall stipulate a reasonable date for subsequent performance by us not being less than 4
weeks counted from the initial delivery date.
6.2
In the event of our failure to meet the reasonable date for subsequent performance and if the Customer then wishes to invoke his right to withdraw from the contract or demand compensation in lieu of the services, the Customer shall give us prior written warning of this stipulating a second reasonable date for delivery of the goods or provision of the services. At our request and within a reasonable period
following receipt of that request, the Customer shall give us notice of his decision either to receive delivery of the goods or provision of the services or to withdraw from the contract or to demand compensation in lieu of the services on grounds of nonperformance.


7. Retention of title
7.1
Goods sold by us remain our property until our claims by the Customer resulting from the business relationship have been satisfied (“Reserved Goods”). If the Customer processes, combines or modifies the Reserved Goods, our retention of title extends to the complete new finished product.
7.2
If the Customer processes, combines or mixes the Reserved Goods with other goods, we acquire joint title pro rata, to that part of the goods representing the invoiced value of our goods in relation to the total value of the other goods that have been processed, combined or mixed.
7.3
If the Reserved Goods are combined or mixed withfinished goods of the Customer or of any third party, the Customer hereby and forthwith assigns all his rights with regard to such finished good. If the Customer combines or mixes the Reserved Goods with finished goods of a third party in return for compensation, the Customer hereby and forthwith assigns to us its right to compensation against such third party.
7.4
The Customer shall be entitled to resell our Reserved Goods in the ordinary course of his business subject to our retention of title. If, upon such resale, the Customer does not receive the full purchase price in advance or upon delivery of such goods, the Customer shall agree upon retention of title with his customer in accordance with these conditions. The Customer hereby and forthwith assigns to us its claims arising from such resale and its rights arising from the said agreement on retention of title. Upon our request, the Customer shall give notice of such assignment to his customer(s) and provide us with all information and documentation necessary to enforce our rights against those customers. Notwithstanding such assignment, the Customer shall be entitled to collect the claims arising from such resale as long as he fulfils its obligations and liabilities to us.
7.5
Should the total amount of security interests granted to us exceed the total amount of our claims, we shall, upon Customer’s request, release individual securities which we deem appropriate. Our invocation of retention of title shall not imply withdrawal from the contract, unless we expressly issue prior written notice of this.


8. Force majeure
In cases of force majeure our obligations to deliver goods and provide services shall be prolonged automatically for the period during which the impossibility of performance persists. The same shall apply in the case of energy and raw material shortages, official orders, transport and business disruption, or if any one of our suppliers becomes unable to make deliveries, either promptly, correctly or at all, on grounds of force majeure or any other of the foregoing circumstances.


9. Product data
Unless otherwise agreed, the goods supplied by us have the composition and characteristics stated in the product specifications applying at date of supply.
Guarantees of product characteristics, stability and other data shall only apply provided they have been expressly agreed upon in writing.


10. Complaints/Notification of Defects
We shall receive written notice of all Customer’s complaints and, in particular of notification of defects, without delay and not later than 10 days from date of receipt of the goods (in the case of hidden or latent defects, without delay and not later than 10 days after such defect (s) is discovered or should have been discovered through the exercise of reasonable investigation). If the Customer fails to give us notice of objections or complaints promptly or in the agreed written form, the goods delivered or the services provided shall be deemed to be without defect with respect to the complaint or notice being not timely or not according to the agreed form. Should the Customer be aware of a defect in goods delivered or services provided by us and nevertheless accept them, the Customer shall waive all its rights of recourse relating to such defect, unless he has expressively reserved such rights in writing.


11. Customer’s rights in case of defects
11.1
For all defects arising in goods purchased from us during the legal warranty period, the Customer shall at his sole discretion opt for subsequent performance in the form of repair or replacement within the limits prescribed by law, and also – in cases where the additional legal conditions are met – claim for price reduction, right of withdrawal from contract or payment of compensation, including payment of
compensation in lieu of fulfilment and compensation for unnecessary expenses incurred.
11.2
Within the limits prescribed by law, the Customer shall also be entitled to demand payment of compensation and reimbursement of out-of-pocket expenses incurred in connection with any subsequent performance. Refunds shall be precluded if such expenses are increased because the goods were later transported to a place other than the seat or place of incorporation of the Customer, unless such transport
corresponds to the intended use of the goods or unless otherwise agreed. The provisions contained in Clause 11 shall also apply to payment of compensation and reimbursement of out-of-pocket expenses incurred.
11.3
The Customer’s legal rights of recourse against us shall no longer apply in case the Customer has entered into agreements on defect claims with his own customers extending beyond the limits prescribed by law. Where such claims are for refund of expenses Art. 11.2 shall apply accordingly.
11.4
As far as claims against the Customer have been successful pursuant to the regulations for consumer goods purchases, regress claims by way of recourse
demands shall not be void pursuant to the provisions governing consumer good purchases.


12. Liability limitation
12.1
We, our legal representatives, employees and vicarious agents shall only be held liable on grounds of breach of contractual obligations and/or tortious act, if we, our legal representatives, employees or vicarious agents have acted wilfully or with gross negligence, or if the neglected obligation was of material importance for attainment of the object of the contract (“Cardinal Obligations”). In the event of our failure to fulfil Cardinal Obligations through simple negligence, our liability shall be limited to the foreseeable damage typical for such contract.
12.2
This limitation shall not apply in cases where we bear mandatory liability under the laws on product liability (ProdHaftG) or on any other grounds for death, bodily injury, health impairment, loss of or damage to privately used objects or any other grounds of mandatory liability.


13. Limitation
The Customer’s warranty and compensation claims and right to reimbursement of expenses shall expire after one year counted from the commencement of the statue of limitation stipulated by law, unless we have acted wilfully or bear liability on grounds of product liability (ProdHaftG) or on any other grounds for death, bodily injury, health impairment or loss of or damage to privately used objects.


14. Secrecy
The Customer shall treat all confidential information (knowledge, documents, technical and similar data, measurement data, techniques, business secrets,
know-how, drawings, etc.) belonging to us and coming into his possession during the course of our business relationship in strict confidence and shall not to publish this or otherwise make it available to third parties without our prior written consent.


15. Prohibition of Assignment
The Customer shall not be entitled to make assignments under this contract without our prior written consent.


16. Compliance with legal regulations
16.1
Unless otherwise agreed in writing, the Customer shall be responsible for compliance with statutory and regulatory requirements relating to import, transport, storage and use of the goods.
16.2
Insofar as statutory or regulatory approval requirements apply to the export of our goods or provision of our services at the time of delivery or provision of our services and such export approval is not granted upon request, we shall be entitled to rescind the contract.


17. Data protection
Data relating to the Customer shall be stored and processed by us only as far as necessary for the purposes of the contractual relationship. The Customer hereby grants his consent to this.


18. Requirement of written form
18.1
All amendments and additions to this contract or to these General Conditions of Sale and Supply, including cancellation of this clause stipulating use of the written form, shall not be valid unless made in writing.
18.2
Any statements and notifications issued by the customer after conclusion of the contract shall not be valid unless made in writing.


19. Place of jurisdiction
If the Customer is a merchant, the exclusive place of jurisdiction shall be our commercial domicile in Hamburg. If we institute legal proceedings against the Customer, we shall also be entitled to institute legal proceedings at the Customer’s place of jurisdiction.


20. Governing law
The contract and all legal relations between the Customer and us shall be exclusively governed by German law to the exclusion of the laws on conflict of laws and of the United Nations Convention on Contracts and the International Sale of Goods (CISG) of April 11, 1980.


21. Trade terms
If any trade terms have been agreed pursuant to the
International Commercial Terms (“INCOTERMS”),
these shall be applied and interpreted in accordance
with the INCOTERMS in force on the date the contract is concluded.


22. Severability
Should any individual provision(s) of these General Conditions of Sale and Supply be deemed wholly or partially invalid, this shall not affect the validity of the remaining conditions.